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Tuesday, September 02, 2014         

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Judge torn on fate of nuke victims' care

At issue is a request to end benefits to people affected by U.S. testing

By Leila Fujimori

POSTED:



A group of 7,700 Pacific island migrants in Hawaii who suffer from the long-term effects of U.S. nuclear testing -- a high rate of cancer, kidney failure and sterility -- await a federal judge's ruling on a request to dismiss a class-action lawsuit that seeks to restore their medical benefits.

U.S. District Judge J. Michael Seabright said he will rule next week, but he was apparently grappling with what could be a life-or-death situation for many.

"You can see how I, myself, am struggling with this," Seabright said at a hearing yesterday on the state's motion to dismiss the suit on behalf of migrants from the Federated States of Micronesia and the republics of the Marshall Islands and Palau.

"Congress gave the states discretion to provide medical benefits to pay for this group of people," argued Deputy Attorney General John Molay. "Up until this year, we had given them benefits equal to citizens. Because of the state's fiscal situation, we can't afford it."

Islanders covered by the so-called Compact of Free Association are free to travel to the U.S. under a 1986 federal agreement.

The state receives $11.2 million yearly in federal funds to compensate for the impact that the migrants have on schools, social services and health care. But health care costs alone are estimated at $40 million a year.

Paul Alston, an attorney for the Pacific islanders, argued the state's decision to single out this group for a reduction in medical benefits is unconstitutional because it is based on an alien classification.

Seabright asked Alston whether he was saying that states really have no discretion over whether to provide benefits.

Alston said the state must provide the same benefits across the board to aliens and citizens alike.

After the hearing, Alston blamed the state for its failure to ask for more federal funding, which he said is available, and said he finds it unconscionable to place the burden of the budget shortfall on the backs of the members of this disadvantaged group.

"We also think it's illegal," said co-counsel Margery Bronster. "We're not saying, 'Let's do this because it's the nice thing to do. Do this because it's the right thing to do.'

"If the state has the opportunity to get more money, why would the state put in danger their lives and cut benefits rather than go to Washington and ask for more money?" she asked.

State Human Services Director Lillian Koller and Gov. Linda Lingle have said they made numerous requests for more federal funding, but have been unable to get it.

If Seabright decides not to dismiss the case, the state may appeal the decision to the 9th U.S. Circuit Court, and it is unknown whether the medical benefits will continue during the course of the appeal.

"Our concern is people will die," said Bronster.

The state had initially planned to drastically cut benefits, including dialysis and chemotherapy treatments. The lawsuit forced the state to come up with a new plan and a judge issued a temporary restraining order on the initial plan. In July, the state compromised with a reduced benefits package that covers those treatments.

Will Swain, president of Pa Emman Kabjere, a group of 165 Marshallese cancer and dialysis patients, said many dialysis patients simply stopped treatment on Sept. 1, 2009, after receiving a letter from the state informing them they will no longer have coverage for dialysis.

"We've already lost 27 since Sept. 1, 2009," said Swain.

The United States conducted atmospheric and underwater nuclear tests in the Marshall Islands and other Pacific sites from 1946 to 1962.






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